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Chamber and committees

Meeting date: Tuesday, January 30, 2018

Meeting of the Parliament 30 January 2018

Agenda: Time for Reflection, Business Motion, Topical Question Time, Gender Representation on Public Boards (Scotland) Bill: Stage 3, Gender Representation on Public Boards (Scotland) Bill, Business Motion, Motion without Notice, Decision Time, St Andrew’s First Aid


Topical Question Time

Police Investigations and Review Commissioner

To ask the Scottish Government what its response is to the reported allegations of “government interference” in the independence of the Police Investigations and Review Commissioner. (S5T-00900)

I fully support the independence of the Police Investigation and Review Commissioner.

The PIRC has made clear that there has been no interference in the publication of her audit report. I am clear that decisions about the timing of the audit report remained with the commissioner at all stages, and it was for her to consider whether the points that were raised were relevant or not. She decided that it was appropriate to proceed as planned, and the Scottish Government fully supports the principle that the PIRC is independent in making such decisions

There is regular dialogue between the Scottish Government sponsor teams and non-departmental public bodies. It is part of that to encourage public bodies to consider their role in the wider context of public services.

I note the cabinet secretary’s response. However, last month, Scottish Government officials were rebuked by the PIRC for interfering with her independence following a specific request from an official. When did the cabinet secretary become aware of that request? What steps has he taken to ensure that that will not happen again? Following the stories of Government meddling in the Scottish Police Authority and now the PIRC, can he guarantee that this is the last story about interference with the police that will come out of his department?

I became aware of the emails on this matter on 25 January—last Thursday. That is when we were advised of the PIRC’s plans to publish the response to the freedom of information request.

I recognise that the PIRC believes that aspects of the email that was sent by my official on 30 November could be perceived as being Government interference with her independence. I also recognise that it is important that there should be no room for ambiguity in communications. I fully support the independence of the Police Investigations and Review Commissioner.

The aim of the email from my official was to identify risk that the PIRC should consider. Officials were aware of a number of on-going investigations of complaints against senior officers, but they had no knowledge of the content of the audit report when the email was sent on 30 November.

The member will recognise that the PIRC has made clear that there was no interference in the publication of the report. I am clear that decisions about the timing of the report remained with the commissioner at all stages, and that it was for her to consider whether the points that were raised were relevant. She decided that it was appropriate to proceed as planned, and I fully support her independent decision making in those matters.

I note that the cabinet secretary has twice said that there was no interference. However, the critical fact is that the request was not successful, so the crucial question is whether the Government attempted to interfere in an independent body. That was the view of the PIRC in December, when she said:

“My perception of your remarks is of governmental interference with my independence.”

A failed attempt to interfere is morally no different from a successful attempt to interfere. Does the cabinet secretary accept that attempts to interfere in the independence of key public bodies such as the PIRC are completely unacceptable?

I will quote the PIRC on this matter:

“There have been no incidents of government interference and the release of the audit document went ahead within the planned timescale.”

I have already recognised the PIRC’s perception of the email from my official. The member will recognise that the Government will have on-going engagement with public bodies on a range of issues. It is appropriate for officials, when engaging with public bodies that are sponsored by the Government, to highlight issues of risk for them to consider. However, I am clear that, when such issues have been highlighted with the PIRC, it is entirely for the commissioner to determine whether they are relevant and to make decisions on that basis. That is exactly what happened in the case that we are discussing, and the commissioner proceeded with the timeframe that she had set out. I fully support that and recognise that it is an important part of the independence of the PIRC.

Michael Matheson can stand there and claim that the report was not delayed and that there was no interference, but it is no defence to say that the Government tried to stop the report and failed. An attempt at interference is still interference.

We now know that there is a deeply embedded culture of secrecy and central interference, and that the tone is set from the top. Michael Matheson should have the good grace to realise what that means. If he does not, we should spell it out. He has fallen short of the standards expected in high office and does not have the moral credibility to do his job. When will he do the honourable thing and resign?

I will continue to do the honourable thing, which is to do my job properly. As I set out to Mr Johnson, officials were aware that the PIRC was undertaking an audit of the SPA’s complaints process. The PIRC informed them in late November that the audit would be published in December. Officials were aware of a number of on-going investigations into complaints against senior officers but had no knowledge of the contents of the audit report when the email was sent on 30 November. They aimed to identify potential risk for the PIRC to consider. It was clear from the PIRC’s response on 5 December that the report would be published at the end of December.

It is legitimate for the Government to highlight potential risk that might be relevant to the work of a public body. That is not a new thing in the Government but something that has gone on in the Government for many years and under different Administrations. However, the decision on what action was appropriate in light of the issues concerned was clearly a matter for the PIRC. As an independent body, the PIRC has made it clear that there has been no interference in the publication of the audit report and that the PIRC decided that it was appropriate to proceed as planned with the publication of the report. I fully support the independent decision making of the PIRC on that matter.

On this point, it is important to get the facts across. Can the cabinet secretary confirm that at no point did the Scottish Government interfere in the report that was done by the PIRC or the date of its publication?

At no point has the Scottish Government interfered in that report or in any report by the PIRC. The PIRC is an independent body. It has been made clear that there was no interference by the Scottish Government in respect of this particular publication. As I have mentioned several times, the report’s release went ahead as planned, according to the timescale. The Scottish Government is clear that decisions about the timing of the audit report remained with the commissioner at all stages, and that it was for her to consider whether the points that were raised by officials were relevant or not. She decided that it was appropriate to proceed as planned. The Scottish Government fully supports the principle of the PIRC making such independent decisions.

Can the cabinet secretary outline how he would characterise relationships between him and the PIRC? As he has made very clear what he considers does not constitute political interference, can he outline some examples of what would constitute political interference?

My view is that the PIRC’s role in taking forward investigations in such matters is entirely independent of Government. Clearly, the PIRC is a sponsored division because it is funded by the Scottish Government to support it in its role, and we provide it with support and guidance, as we do for any other public body in the public sector landscape. That is not peculiar to the PIRC or the justice portfolio—it happens right across Government. When I was a health minister, for example, I worked with sponsored bodies in the health sector, and it is the same for other parts of the public sector. That support and guidance are key parts of the relationships that Government has with public bodies. However, it is equally important to recognise the independent nature of those bodies. Determinations on the matters that we are discussing are entirely a matter for the PIRC, as are consideration of whether any views expressed by the Government are relevant, and decisions on what action it will take.

Government officials having suggested that the PIRC hold back a report because the timing was not convenient is extremely serious. Even given that the interference was unsuccessful, does the cabinet secretary accept that it shows the unhealthy consequences of concentrating power in the hands of so few, and that the temptation to intervene would be less were power to be shared more widely?

The timing of the report’s publication was for the PIRC. When the Scottish Government official sent the email to the PIRC, that person had no knowledge of the report’s content or its terms of reference regarding the timescale for dealing with the complaints that it was dealing with. The detail of that became known to the Scottish Government when the embargoed copy of the report was provided. It is wrong to try to suggest that that was because there were critical aspects within the report and that the Government just did not think that it was convenient. The Government did not know what was in the report, in the first place.

It is important that the PIRC is able to take forward matters in a timeframe that is appropriate for itself. I know that members have raised concerns in the past about the time that it takes for the PIRC to investigate certain complaints and issues. The reality is that that is entirely a matter for the PIRC. We should accept that it is appropriate, if it will take a long time for a thorough and detailed investigation, for the PIRC to be given the time and space to allow that thorough and detailed investigation to be undertaken on complaints with which it is dealing.

I will continue to defend the PIRC and to make sure that it has the right to be independent in those matters and has appropriate time to investigate complaints, as and when that is appropriate.

The PIRC is the latest example of the cabinet secretary interfering in the decisions of a public body.

On 24 January, I asked the minister very specifically whether he had sought legal advice before interfering in the SPA decision. His response was that he had taken “appropriate advice from members”. I ask him which members he sought advice from, specifically whether the First Minister was one of those members, and what advice was given. This is the fourth opportunity that the cabinet secretary has had to come to the chamber to tell us categorically whether or not he sought legal advice.

In relation to the PIRC report, there was no legal advice for me to take because the issue was an email exchange between officials.

In relation to the wider point, Government officials and I take advice from officials on an ongoing basis on a range of matters. That includes legal advice.

I am sure that Margaret Mitchell will also recognise that Governments do not publish the details and nature of the legal advice that we receive. That is not the position of only this Government; it has been the position of previous Governments, which is the same as the United Kingdom Government’s position on such matters.

I have taken advice from appropriate officials, including legal advice as and when it was necessary, on a range of matters relating to my portfolio.

For the avoidance of doubt, can the cabinet secretary say when he first became aware that the PIRC was undertaking an audit of SPA complaints and when he first saw the report?

I first became aware of the audit that was being undertaken by the PIRC when it published the details at the end of June 2017. I received an embargoed copy of the report on 27 December 2017.

Given that the independence of the PIRC is set out in law, has the cabinet secretary examined whether there have been any breaches of the civil service code in relation to the incident? If not, will he do so?

Breaches of the civil service code are for the civil service to deal with.

I will follow up on that. Is not it the case that, by failing to take records of crucial meetings, Michael Matheson and his officials may have breached the ministerial and civil service codes? Surely, the right thing for him to do to is to take responsibility and resign.

I did not have any meetings about the particular report that Gordon Lindhurst refers to.

Is the PIRC properly resourced to deal with the current investigations?

The PIRC is taking forward a significant level of work and dealing with demand that has been placed upon it because of the range of complaints that it is now dealing with.

Since the PIRC was created in 2013, we have increased its budget by some 20 per cent. This year alone, I provided the PIRC with an additional £100,000 to deal with the additional demands that it faces.

At the end of 2017, I received a business plan that had been put together by the PIRC on the increasing demand that it is facing and the resources that are necessary to meet that demand. I have given consideration to that. With the support of Parliament, I intend, if the budget is agreed, to increase the PIRC’s budget by more than £1 million in the forthcoming financial year. That would increase its budget by almost 30 per cent, in order to allow it to increase the range of staff that it has to deal with the investigations and demands that it is experiencing at present.

Meddling in the decision making of independent bodies cannot be tolerated. The public will be most appalled at the sustained cover-up, which appears to have been sanctioned from the very top. How does Michael Matheson expect to continue day-to-day working with those who have accused him of governmental interference with their independence?

I have absolutely no idea what cover-up Maurice Corry is trying to make reference to, but I will quote what the PIRC has to say on the matter. It said:

“There have been no incidents of government interference and the release of the audit document went ahead within the planned timescale.”

The emails that the member and others have made reference to were brought to my attention on Thursday 25 January for the first time. Did I have knowledge of the engagement between my official and the PIRC? No—I had no knowledge of that. Did I ask the official to make representations? No—I did not. I hope that that clarifies things for the member in terms of my involvement in the matter.

I understand why the minister will be confused. There are so many cover-ups that he does not know which one we are talking about.

On a related issue, in November, Her Majesty’s inspectorate of constabulary in Scotland delivered to the cabinet secretary its report on undercover policing in Scotland. Why has the report still not been published? Is that another case of the minister deciding when a report will be released?

As I have said, the report will be published in due course.

Is it the case that the cabinet secretary fails to recognise that he and his officials are attempting to interfere in the independence of independent bodies because he or his officials routinely communicate like this with independent bodies?

As I have made clear, it has always been the case that Governments engage with a range of non-departmental public bodies on a range of issues across Government. That is no different in the current Government to how it was in previous Governments, including when the Liberal Democrats and the Labour Party were in control in Scotland. I have no doubt that it remains the case with the UK Government as well. Offering guidance and support and exchanging information are normal parts of the Government’s work and normal parts of the engagement process. I am sure that Mike Rumbles will recognise that that is not peculiar to this Government. It has always occurred in the relationship between Governments and public bodies.

ScotRail Stop-skipping

To ask the Scottish Government what its position is on concerns regarding the occurrence of stop-skipping by ScotRail. (S5T-00908)

I completely understand the frustration that stop-skipping can cause for the customer experience. I fully expect the performance issues to be addressed immediately, and I regularly speak with Alex Hynes, the managing director of the ScotRail Alliance, to stress that very point.

In an answer to a question last week from Alex Rowley, I mentioned that Alex Hynes has instigated an independent review as part of ScotRail’s recovery measures, which I very much welcome. The review, which is under way, will look at steps to recover performance and aim to reduce stop-skipping. Once the findings are published, I will of course look at the recommended steps for improvement and how that information is made publicly available.

The practice, of course, is undeniably and understandably unpopular. My officials at Transport Scotland will therefore continue to monitor and challenge ScotRail on it to ensure that it is minimised.

Just to put the matter in some context, I add that I am sure that the member would like to note that, over the past year, about 0.78 per cent of services ran stop-skipping, against the circa 763,000 services that were booked. That means that 99.22 per cent of services did not skip their stops.

Can the minister advise me now or afterwards how many stop-skippings were due to breakdowns on the network or breakdowns of other rail providers? Given that the matter is not all under ScotRail’s control, although I am not excusing it, is there not an argument for integrating the network and ScotRail?

The member raises a good point. I do not have the exact figures to hand, but I will look them out with my officials. Time and again, independent reports such as the report by the Reform Scotland think tank have shown that 54 per cent, or the majority, of delays are down to Network Rail and the infrastructure. Of course, Network Rail is still a reclassified body under the United Kingdom Government’s Department for Transport and is not within the devolved control of this Parliament or indeed this Government. However the member is right that that is not an acceptable excuse. ScotRail and the ScotRail Alliance must work on minimising stop-skipping.

To put the issue in context, there were significant improvements on stop-skipping in the last railway year, as ScotRail managed to get the figure down to 0.4 per cent of services. That figure has increased because of the poor autumn and winter performance. When the independent review has been conducted, I will of course share the recommendations with members around the chamber in an appropriate way.

I note what the minister says about Network Rail’s part in this. However, I was a victim of unannounced stop-skipping on the Borders railway, when the train whizzed past Newtongrange, where my car was, so I had to go on to Shawfair and take the next train south. Had I been picking up children, it would have been a different matter from me just being very cross. Will the minister seek to end this practice, because the impact on individuals on the train—elderly people, people who have children to pick up, people with job interviews—can be substantial? They can lose 45 minutes if they have to go to another station and take a train back.

The member’s example is one that is experienced too often by people on the railways. I am not dismissing that concern in the slightest. In some instances, the ScotRail Alliance feels that stop-skipping has to take place because the infrastructure might fail or there might be a points, signal or rolling-stock failure. Therefore, in order for the entire network not to be out of kilter, a train might have to skip a stop. What is clearly unacceptable, and what happens far too often, is the failure in communication around that. People can already be on the train and then have their stop skipped. If people knew in advance that their train was not going to stop at X, Y or Z station, they could perhaps plan their journey ahead.

There is clearly a failure in communication as well as the performance not being good enough, but I give the member the absolute assurance that, as part of the independent review that is being taken forward by Nick Donovan, the ScotRail Alliance is considering how to minimise the practice.

Another six members have questions on this issue, which is clearly of some interest. If the minister can make his replies as brief as possible, we will see how many questions we can get through, although I do not think that we will get through them all.

Around 20 trains a day in Scotland miss their stops, which causes great inconvenience to those on the trains who are unable to get off, and to those who are waiting at stations. What conversations is the minister having with ScotRail to ensure that the practice is minimised? Will he ensure that ScotRail gives passengers more foresight that a station will be skipped and better information on alternatives? How are passengers who are affected by the practice adequately compensated for any inconvenience, or cost incurred, as a result of their stop being missed?

I hope that I answered Jamie Greene’s questions in my reply to Christine Grahame, but I emphasise that I will reiterate the member’s point to Alex Hynes. That will be part of the independent review. Once the review recommendations come my way, I will certainly look at them and have a discussion with Jamie Greene about them.

Jamie Greene is absolutely right to highlight the point around communication, as that is such a frustration for passengers. Passengers whom I have spoken to completely understand that things can go wrong on any rail network—whether that involves infrastructure or rolling stock—but they are not prepared to accept the lack of communication in 2018, in the 21st century, when we have smartphone technology. The message should be getting out to passengers.

The member mentioned that 20 services a day were affected. To put that in context, that is about 0.8 per cent of services, so the vast majority still run to the stations that they are meant to. Notwithstanding that, the member’s points are well made.

The minister knows that passengers on ScotRail services to Dumbarton, Helensburgh and Balloch are frequently affected by station-skipping, and that scheduled services often whizz past Cardross and Dumbarton Central stations without stopping, which leaves passengers stranded. Even the promise to abolish station-skipping during rush hour has been broken. I point out to the minister, as gently as I can, that 0.8 per cent might sound small, but that is 64,000 journeys, and it feels like most of them are happening in my patch. Will the minister ensure that statistics are published for each line and end the practice of station-skipping at key stations, such as Dumbarton Central and Cardross?

I am not sure about the figures that Jackie Baillie quoted, but I certainly have not been dismissive—I hope that that was clear in the tone of all my responses. I have said that I find the practice unacceptable. I have tried to give some context about why stop-skipping might sometimes be necessary, to ensure that the network is not out of kilter for the rest of the day, but I agree with the member that the figures are too high.

When I spoke to Alex Hynes, he mentioned that he would continue to be in dialogue with Jackie Baillie, and I think that another meeting with her has been arranged—if not, I think that a meeting will be coming her way. I know that stop-skipping will be on the agenda.

I want to correct the record, because the member was wrong when she referred to the promise that was made. It was never said that stop-skipping during peak time would be abolished; it was said that the practice would be minimised. However, that has not happened, and we must ensure that we get back to a position in which stop-skipping is minimised. ScotRail achieved that in the spring and summer of 2017, but autumn and winter performance has not been where we wanted it to be.

I hope that the member understands that I am not dismissing passengers’ very real frustrations. As soon as the independent review has been conducted, I hope that we can get ScotRail back on the trajectory of improving performance.

Given that stop-skipping is scored less harshly than a late arrival, does the minister accept that the franchise agreement encourages the practice?

No, I do not, because it still counts towards a public performance measure failure. The member’s colleague Mark Ruskell made the same point to me and I said that I would reflect on it when it comes to future franchises and consideration of how we can disincentivise stop-skipping. Stop-skipping counts as a PPM failure—that is important—and ScotRail is judged on its PPM statistics.

Will the minister look into the situation in my constituency, where scheduled trains are terminating at Hamilton Central and not continuing to the halt at Larkhall via Chatelherault and Merryton? It is not quite station-skipping; it is just missing out the final three stations, but it is an all-too-regular occurrence, which has left many of my constituents stranded, out of pocket and incredibly upset, especially if they have annual season tickets.

Yes, I will look into the situation and I will mention it to Alex Hynes, the MD of the ScotRail Alliance. I will encourage him to meet the member. She is absolutely right, it is a source of frustration if a train does not stop at the final three stops when it was expected to do so. I accept and do not minimise or dismiss the concern.

I will arrange for Alex Hynes to speak to the member about the issue. I know that she has had good engagement with him about other issues, including antisocial behaviour at Hamilton Central.

Given that the performance data on stop-skipping and overcrowding, and even the targets towards which ScotRail works, are not routinely published, does the minister accept that it is time for ScotRail and the Government to come clean to the travelling public and publish the statistics on stop-skipping on a routine basis, so that we can properly assess performance?

I do not accept Colin Smyth’s characterisation. A plethora of statistics are published routinely—sometimes members need to be pointed in the right direction in that regard, and I will reflect on that.

I am not dismissing the member’s concern. However, we are very up front with our figures, which is why I have been able to give him figures period by period. I can break down the figures by line and service, as well, and I am more than happy to do so, because we have nothing to hide, in that we want to see ScotRail improve and are working hand in hand with ScotRail on that. When the independent review is published, I will be more than happy to speak to Colin Smyth, in his new role overseeing transport issues for the Labour Party, about the recommendations.

I have some sympathy for people who are concerned about stop-skipping, given that Coatbridge Sunnyside and Coatbridge Central have been subject to the practice in recent weeks, to the annoyance of many commuters.

Does the minister agree that last year’s Treasury announcement that rail funding for Scotland will be £600 million less than is needed over the five years from 2019 is a major factor and risks doing serious damage to rail projects, performance and infrastructure?

Yes. The member makes a good point. Any shortfall in funding will impact on infrastructure and the maintenance of the railway. We will continue to have a dialogue with the United Kingdom Government about that.

Notwithstanding that, there is clearly an imperative for ScotRail to improve its performance and to reduce the practice of skipping stops, and I know that Alex Hynes takes that seriously. We will continue to focus on the issue while having conversations with the UK Government on what is a very damaging settlement for Scotland’s railways.

That concludes topical questions. I thank the minister for taking all members’ questions. There was clearly a high level of interest, and we had some time in hand.